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Orphan works

In the digital age, literary, musical or cinematographic works must be able to be put online and made available to a broad public. Certain works pose a problem in that their author cannot be identified or located, which makes it impossible to obtain the necessary authorisation to make them available online. This Proposal for a Directive therefore creates a legal framework which aims to ensure online access to ‘orphan’ works.

PROPOSAL

Proposal for a Directive of the European Parliament and of the Council of 24 May 2011 on certain permitted uses of orphan works [COM(2011) 289 final - Not published in the Official Journal].

SUMMARY

This Proposal establishes a legal framework concerning orphan works * taking the form of:

  • books, journals, newspapers, magazines or other writings;
  • cinematographic or audiovisual works contained in the collections of film heritage institutions;
  • cinematographic, audio or audiovisual works belonging to the archives of public service broadcasting organisations.

It applies to all works which are protected by the Member States' legislation in the field of copyright.

This Proposal defines the conditions governing the use of orphan works by:

  • publicly accessible libraries;
  • publicly accessible educational establishments;
  • publicly accessible museums;
  • archives;
  • film heritage institutions;
  • public service broadcasting organisations.

What are the parameters for identifying an orphan work?

The organisations referred to above are required to carry out a diligent search to identify and locate the copyright holder of a work through appropriate sources. These sources are determined by Member States, in consultation with rightholders and users. In particular, they may take the form of:

  • legal deposits;
  • databases of the relevant collecting societies;
  • indexes and catalogues from library holdings and collections;
  • publishers associations in the respective country.

The results of diligent searches must be recorded in a publicly accessible database.

Where the rightholders are not identified or located following a diligent search, a work is considered an orphan work and is recognised as such in all other Member States. The copyright holder nevertheless has the possibility of putting an end to the orphan status at any time.

What types of uses of orphan works are permitted?

Publicly accessible libraries, educational establishments and museums, archives, film heritage institutions and public service broadcasting organisations are obliged to use orphan works for a public interest purpose which includes activities such as:

  • the preservation and restoration of the works contained in their collection;
  • the provision of cultural and educational access to those works.

Organisations are obliged to maintain records of diligent searches carried out and publicly accessible records of their use of orphan works.

However, these organisations may be authorised by Member States to use an orphan work for a purpose other than that of the public interest, provided they remunerate rightholders who put an end to the work’s orphan status.

Context

This Proposal follows the Recommendation on the online digitisation of cultural heritage published in 2006 which invited Member States to equip themselves with legislation on orphan works, an invitation that few of them took up. It is also in line with the objectives of the Digital Agenda for Europe.

Key terms of the Act
  • Orphan work: a work whose rightholder has not been identified or, even if identified, has not been located after a diligent search for the rightholder has been carried out and recorded.

REFERENCE

ProposalOfficial JournalProcedure

COM(2011) 289

-

2011/0136/COD

Last updated: 16.09.2011

See also

  • Directorate-General for the Internal Market and Services – orphan works
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